Do the Court of Chancery’s confidential arbitration proceedings violate the First Amendment’s qualified right of access?
Answer: Yes. As a general rule, proceedings cannot be closed to the public except in limited circumstances. Under Delaware law and the Court of Chancery rules regarding arbitrations, a judge, acting pursuant to state authority, hears evidence, finds facts, and issues an enforceable order dictating the obligations of the parties. Here, Judge McLaughlin concluded that “the Delaware proceeding functions essentially as a non-jury trial before a Chancery Court judge. Because it is a civil trial, there is a qualified right of access and this proceeding must be open to the public.”
Blogger/lawyer Kevin Brady goes on to provide a detailed analysis of the opinion.